Davis Brown Intellectual Property Law Blog

Is There Hope for the Washington Redskins' Trademarks After All? - October 21, 2015

We’ve been following the Washington Redskins’ trademark battle pretty closely, writing about it several times already. You may remember that the team had its federal trademark registrations cancelled last summer under Section 2(a) of the Lanham Act, which prohibits federal registration of “disparaging” trademarks.

On Friday, October 2, the Federal Circuit heard the appeal of an Asian-American band who was denied a trademark registration for the band name “THE SLANTS” based on Section 2(a) of the Lanham Act. During the hearing, the Federal Circuit put forth a hard line of questioning to the government regarding Section 2(a) of the Lanham Act. Specifically, the Federal Circuit was particularly interested how in the context of trademarks, Section 2(a) is not viewpoint discrimination of the First Amendment.

What is important to know here is that in the context of copyrights, this sort of provision would be in violation of the First Amendment. Though there are many ways to define viewpoint discrimination, it can be generally defined as the unlawful act of the government making laws or penalizing one form of expression over another. For an in-depth discussion of viewpoint discrimination and other aspects of free speech, take a look at this article.

While the Federal Circuit was not hearing the Washington Redskins’ case—it is currently being appealed—the outcome of this particular hearing could have significant ramifications for Washington, since the team is putting forth the same constitutional arguments in its case.

While the band argued that trademarks are private speech and therefore are protected by the First Amendment, the government argued that the action of registering the trademark is a form of government speech and thus not protected by the First Amendment.

Judge Kimberly A. Moore fought back on the government’s argument, however, stating that such arguments would allow the government to deny government benefits on the ground that they are forms of government speech, subject to dissemination based on individual viewpoints.

It is likely that the outcome of this case will no doubt have some effect on the Washington Redskin’s case. We will keep you updated as these two cases unfold.